Coker v. Sinclair Refining Co.

• Decision Date: 27 May 1943
• Docket Number: 15545.
• Parties: COKER v. SINCLAIR REFINING CO.
• Court: South Carolina Supreme Court

25 S.E.2d 894

203 S.C. 13

COKER v. SINCLAIR REFINING CO.

No. 15545.

Supreme Court of South Carolina

May 27, 1943

Mozingo & Watts, of Darlington, for appellant.

Willcox Hardee, Houck & Wallace, of Florence, for respondent.

BAKER Justice.

This action was instituted in the court of common pleas for the County of Darlington, South Carolina.

The action is one for damages for personal injuries alleged to have been received by appellant in a collision between an automobile in which she was riding and a truck of respondent the collision occurring on U. S. Highway No. 52 near the city limits of Florence, in Florence County, South Carolina. The respondent is a foreign corporation domesticated in this State and the complaint, among other things, alleges this fact and also alleges that respondent is doing business and has offices and agents in Darlington County, South Carolina.

In due time respondent served notice of a motion before the Honorable E. C. Dennis, resident Judge of the Fourth Judicial Circuit, for an order transferring the case to Florence County for trial upon the ground that the proper venue of the action is Florence County, in that the respondent has no agent in Darlington County, or office in said county but has an agent residing in Florence County. Attached to the notice was an affidavit of Maitland S. Chase Jr., a commission agent of respondent, residing at Florence S. C. This affidavit is in part as follows: "that, as such agent, he is familiar with the method by which the defendant carries on its business in this area; that he knows of his own knowledge that defendant does not have an office or an agent in the County of Darlington; that it does have an office and agent in the County of Florence; that in the distribution of its products Darlington County is serviced by the Florence plant, under deponent's supervision."

The matter was argued before Judge Dennis at Darlington, S. C., at which time affidavits on behalf of appellant were submitted. The motion was taken under advisement, and subsequently an additional affidavit was submitted on behalf of appellant and an additional affidavit by Maitland S. Chase, Jr., on behalf of the respondent.

Judge Dennis thereafter passed an order transferring the action to Florence County, and it is from this order that the appeal comes to this court.

We quote from the order of the resident Judge: "It appears from the affidavits filed that the defendant is a foreign corporation, an undoubtedly has an office and an agent for transaction of corporate business in Florence County, South Carolina. It also appears that it is engaged in business in Darlington County in the sale and distribution of its products, and that it owns real estate therein, but its business in Darlington County is serviced through the Florence, S. C., branch. The tank truck used in the distribution of Sinclair products is the property of M. S. Chase, Jr., a commission agent of the defendant, and his employee distributes the products under his sole direction and supervision. I do not think that the showing made warrants the conclusion that the commission agent's employee is an agent of the defendant in the sense of the statute, ***."

It is admitted that the respondent owns and pays taxes on both real and personal property within Darlington County, and that its products are sold in said county. The sole issue is whether respondent has an agent or maintains an office in Darlington County.

Briefly stating the relevant portions of the affidavits before the court, they show: M. S. Chase, Jr., residing in Florence County is the Commission agent of respondent, and his territory embraces Darlington County. Respondent's products are sold and delivered in Darlington County by John W. Harrington, who resides in the City of Darlington. Harrington is an employee of Chase, acts solely under the individual direction of Chase, is paid by Chase, and the tank truck which he uses in the delivery of respondent's products is the property of Chase. Chase is responsible for all sales made by Harrington; and Chase is accountable for all sales, except such as are made to such persons and corporations as have a direct line of credit with respondent. The gasoline and other products of respondent come from the bulk plant operated by Chase, the agent of respondent, Florence, S. C.

It is the contention of appellant that since Harrington delivers respondent's products to persons and corporations who have a direct line of credit with respondent, he thereby becomes its agent. Such contention is without merit. Harrington delivers these products as the agent of Chase, and the only difference between deliveries to...